Category Archives: religion

A drunken man in Wales dressed up in a black bin bag and cape and attacked two cousins with a metal crutch. Why would he do that? Well, apparently he wished to join the Dark Side of the Force. The cousins had recently set up a Jedi church in Holyhead, and were making a film of themselves duelling with lightsabers when the drunken man vaulted the fence and attacked them, shouting “Darth Vader!” as he did so.

What happens when you have a particular group in society who are not minded to follow the law of the State, but prefer to follow God’s law as they interpret it?

Recently this question has come up in relation to Sharia law, particularly after the Archbishop of Canterbury said that some aspects of sharia law would inevitably be adopted in Britain. But the question doesn’t just arise in relation to Islam. Many religions have a group within who prefers the laws of God to the laws of the State. For example, orthodox Jews in Australia may take some disputes between one another to the Beth Din, a religious court where rabbis hand out judgment. And some indigenous Australians may prefer that a dispute be dealt with under traditional law rather than “whitefella law”.

My personal opinion is that as long as the law of God does not transgress fundamental human rights, then parties can consent to that particular law binding their actions. It is rather like an agreement to arbitrate in a contract where any disputes are referred to a mutually agreed arbitrator. The problem occurs when a particular practice or punishment which is said to be required by the law of God or tradition is illegal under the laws of the State: eg, stoning, spearing through the leg, promise of child brides etc. My personal opinion is that such things should not be allowed. The issue is slightly more vexed with indigenous tradition than it is with other religious laws because indigenous people didn’t “choose” to move here and to be subject to our laws, they were imposed upon them from colonisers. Nonetheless, as I have explained in one of my very early posts, as a feminist, I just cannot countenance the assault and rape of a teenage “promised bride” by her tribal husband, for example. Cultural relativism be damned.

It is a difficult question however, because it is a balance between religious tolerance and universal human rights (which should apply to all, regardless of race or religion or anything else).

Consequently, I was really interested to read this article in Slate about the American legal system and the Amish and the Mormons. I hadn’t really thought deeply about the conflict that would arise between State law and the traditions and laws of these two groups.

Amish are Anabaptists of Swiss-German origin who live in separate communities. They dress in conservative dress, do not use much modern technology and do not educate their children beyond 8th grade because of the “worldly values” they might learn. Study is focussed on the Bible, and children are expected to work in the fields with their parents once they leave school. They do not believe in Social Security, and do not either make payments or accept payments from the government. The educational practices and expectation that children will work in the fields has brought them in to conflict with US education and child labor rules. In Wisconsin v. Yoder406 U.S. 205 (1972) three Amish parents were fined by the Wisconsin authorities for taking their children from school before the age of 16, but the US Supreme Court ultimately upheld the right of the parents to do this. Amish refuse to participate in wars, and their conscientious objection has also gotten them into trouble. As the article in Slate observes, the Amish have been given a fair degree of latitude, in part because they are peaceful and because they have managed to broker compromises with the State.

Mormons are members of the Church of Jesus Christ of the Latter Day Saints. They believe in the Book of Mormon. The Church of the Latter Day Saints officially abandoned polygamy after pressure from law enforcement in 1890, but some other fundamentalist groups continue to practice polygamy. The practice of taking multiple wives and taking child brides has brought the Fundamentalist Mormon Church into conflict with the law. In the last few weeks, Texan authorities raided a Fundamentalist Mormon compound after a 16 year old girl called authorities to say that she had recently borne a child to her 50 year old husband. Other US States are concerned that this raid may ruin their efforts to make Fundamentalist Mormons trust them and cooperate with them. As the Slate article outlined, a large raid on a Short Creek Fundamentalist Mormon community in 1953 was ultimately counterproductive. The Slate article concludes that the Mormon groups are in a different situation to the Amish:

But the fundamentalist Mormons groups are in a state of evasion. The ban on bigamy functions as a zoning ordinance: Plural marriage is fine in isolated communities, but not in Salt Lake City, and certainly not on TV talk shows, as Tom Green found. So long as the fundamentalists remain in hiding, the extreme ugliness of conducting raids creates a form of tolerance. They are thus in a “don’t ask, don’t tell” state of legal limbo that could break open at any time. They are outside the law in a different way.

It will be interesting to see whether the Texan raid is counterproductive or forces the Fundamentalist Mormon church into submission.

These situations remind us that the conflict between God’s law and the law of the State has many facets, and there are different ways of resolving the issue. Have a read of the Slate article and see what you think.

Apparently the five Rastas had been charged with cannabis dealing, and the trial had been running for two weeks when one of the police officers recognised a paralegal from the defence team for one of the defendants. The paralegal was said to have telephoned the police and complained about alleged drug running at the Rastafarian temple, although she denied this. What were the chances of that?

The trial descended into chaos, and the prosecution decided not to tender any further evidence. The judge decided that the defendants should be acquitted.

I thought I’d seen all the pathetic excuses possible for trying to get out of legal proceedings (including seceding from Australia, declaring the Court to be a hotbed of Freemasons and/or claiming that the Constitution is invalid for spurious reasons). But this is one of the best:

Richard James Howarth was remanded to appear in the Ipswich Magistrate’s Court to answer a string of traffic offences, including four counts of driving with a blood alcohol content more than three times the legal limit.

However, his lawyers said he failed to appear after having earlier informed them he would not talk to them because he is was [sic] the almighty and above answering to Queensland laws.

Early this month, Aboriginal and Torres Strait Islander Legal Service solicitor Kevin Rose, for Howarth, told the court his client refused his office’s attempts to talk to them.

A court and a mental health expert have already deemed Howarth was mentally fit for trial, but Mr Rose maintained he has obvious mental health issues.

Mr Rose said he did not doubt Howarth genuinely believed he was God.

The Magistrate issued a warrant for Howarth’s arrest. Now if Howarth can turn the handcuffs into loaves and fishes, he might have some possibility of being believed…

Incidentally, if he is God, I have a number of questions for Him:

Why do bad things happen to good people?

Whose God are you? It would sure help if You mediated some religious conflicts waged in Your name.

What is your point of view about homosexuality? (a la Southpark)

If you are God, why couldn’t you just magic the alcohol away from your bloodstream before you got into the car? (I’m thinking here of Aziraphale and Crowley in Good Omens)

A friend has asked that I recount one of my own craziest litigant in person stories. I came across this litigant in person who had exhibited the Magna Carta to his affidavit. Now that’s pretty stock standard with these guys. But the extraordinary thing was that his primary source for the Magna Carta seemed to be a novelty tea towel. I’m guessing it was a tea towel because of the fabric weave visible in the photocopy. Also there was kitschy gothic script. None of the judges commented on it, and I’m not sure that anyone else noticed.

I am very pleased that I managed to avoid Earth Hour: what an absolute crock. In fact, I was at a Chinese restaurant at the relevant time. “I wonder if they’ll turn out the lights?” mused my husband. Not a chance, and thank goodness for that. I didn’t see much evidence of participation on the drive home either, but nor did I see much evidence of excessive lighting use either.

I saw the whole thing as a giant publicity stunt with very little real impact on the environment or carbon emissions. It was just a way for middle class greenies to feel good about themselves without actually having to sacrifice much at all.

I can’t help thinking of a documentary I saw recently about strict Mennonites trying to survive in the modern world. The strictest adherents to this sect do not use electricity and use old fashioned means of transport such as horse and buggy. In modern times, this has meant that the communities cannot compete economically. They are not self-sufficient, and cannot generate enough produce, because they do not use modern farming methods and implements. Some communities have decided to use electricity in an effort to survive. Others continue to refuse to use electricity, and keep to the old ways, but it is extremely hard.

Proponents of Earth Hour should try living like strict Mennonites for a month. Turning the lights off for an hour? Pshaw. What a weak gesture. To make a real difference, turn out the electricity for a month, and in a world that has electricity all around you.

From what I could see, life without electricity was very, very hard. Some of the people were the same age as I, but looked years older, presumably because they had been working in the fields since they were young and because they had many children to care for. One of the most poignant moments for me was when a woman from a community without electricity was discussing dentistry with a man from a community with electricity. I couldn’t help being appalled at the idea of dentistry without electricity. Yowch. I also wonder what kind of training these people had in dentistry; schooling is very limited, and teaching outside the Bible is not allowed.

Interestingly, all the strict Mennonites had an ambivalent attitude to electricity. Those whose communities had introduced it said that in some ways, it made work a lot easier, and it certainly helped their communities be productive enough to survive. On the other hand, they also said it meant that the young men of the village were able to escape and get drunk, and that young people were exposed to television and the outside world a lot more. The innocence of the young had not been able to be preserved in the same way. Nonetheless, I can’t help thinking that keeping young people from knowledge and learning is wrong: innocence really comes about through ignorance. Obviously, I don’t want my daughter to be exposed to certain kinds of knowledge until I consider that she is old enough to understand it, but I don’t want her to be ignorant either. Another sad vignette concerned a young man who had decided to leave his community, but he did not have enough education to do much outside his community. His ignorance prevented him from having choice.

No, one shouldn’t waste electricity, and we certainly try not to do so in my household. Quite apart from the environmental issues, we can’t afford a big electricity bill. But I do wonder about these people who call for us to “drastically cut our carbon emissions”. How do they propose that we achieve that, precisely? If turning the lights off for an hour has very little or no impact, clearly they would call for more “drastic” measures. Well, I’ll let them try living like Mennonites first. I wonder how long they’d last?

Update

Forgive me, I’m a cynic. But apparently it’s all about branding, darlings. Earth Hour was the brain child of advertising agency Leo Burnett. Now why doesn’t that surprise me? As Peter Foster, the author of the Canadian article linked above, says:

The presence of Leo Burnet [sic] indicates that this is very much about business and branding (a bit ironic for the No Logo crowd, surely). Guidelines about how the Earth Hour brand must be used are available on the WWF Canada Web site, along with the information that: “The Earth Hour tone of voice is human, optimistic, inclusive, passionate and caring. The Brand should never appear to be aggressive or use scare tactics to incite participation.”

How this squares with all the greatest-threat-the-world-has-ever-seen stuff escapes me, but what the hell, this is about business and power, not truth.

I’m sure the WWF is loving all the extra publicity. Not to mention the SMH.

Last night, I watched a rather depressing documentary on SBS called The Anatomy of Evil. It was about people who perpetrate genocide. I’ve been morbidly fascinated with this question for a while now, as I’ve explained in an earlier post. I’ve never quite been able to fathom how people could shoot/gas/blow up an innocent civilian.

This documentary consisted mainly of interviews with former members of the Einsatzgruppen and Serb paramilitaries, each of whom conducted ethnic cleansing of villages by lining up people and shooting them at point blank range. Some interviewees were unrepentant, and said they’d “do it again if it was necessary”. Some still regarded the people whom they had shot as sub-human. A few regretted their actions and felt less than human.

The director, Ove Nyholm, concludes that the trigger which compels ordinary people to behave like this is anxiety and fear of a threat. In such circumstances, people put aside normal feelings and become ruthless. This is a survival mechanism, and can actually be a positive thing. People can survive in terrible circumstances through sheer willpower. But in the scenario where a group of people who live alongside you are identified as the threat, there is a risk that you will become ruthless towards those people and cease to see them as human. Add to that a wartime context where violence and killing is condoned and people are forced to follow orders, and the results can be deadly. And there’s the notion of retaliating for past wrongs. One of the most unpleasant interviewees featured in the documentary cited the fact that his family had been driven from Kosovo by Albanians in the past, and that he felt satisfied and a sense of righteous revenge when killing villagers and burning down their houses. Another interviewee said that he became a member of the paramilitary group after his own parents had been brutally killed.

It occurred to me too that this analysis can also help explain other wars and ethnic and religious conflicts which do not involve genocide as such, but where innocent civilians are killed.

Take, for example, terrorist attacks. The way in which terrorists become galvanised to kill innocent people is by considering wrongs done to their own people, and desiring to take revenge. I recall that during the Israeli incursion into Lebanon, someone forwarded a Powerpoint slide of dead Lebanese civilians, including a young boy. The purpose was obviously to provoke outrage against Israel. If I was a radical Hezbollah supporter, I am sure that such pictures would be used to whip me into a state of righteous indignation and revenge. And I am sure that an Israeli defending the incursion into Lebanon would ask me to consider Israeli civilians injured or killed by Hezbollah rockets, or Hezbollah terrorist bombs. They might also point to the suffering of Jewish people in the past in Europe as a reason as to why Israeli territory should be staunchly defended. Personally, I consider the loss of life on both sides to be tragic. Neither side can be said to be blameless, but by the same token, the natural human propensity for revenge makes the outraged response of each side understandable. This is why I am so reluctant to “take sides” in discussions on the Middle East, although I am a firm believer that the State of Israel has a right to exist in its original boundaries.

Conflict is fuelled by the notion that the other group represents a threat to the way of life or security of the group. Sometimes, as in Israel, Northern Ireland or Cyprus there are settlers and occupying forces. Sometimes there are competing claims to the same piece of land, or the same holy site (as with some mosques which are targeted by Hindu militants in India). Sometimes the particular ethnic group wants to be separate from the rest of the country, as with Basques in Spain, Kurds in Turkey, Iraq and elsewhere and Tamils in Sri Lanka, because they feel that their way of life and culture is not adequately represented by the government of the particular country of which they are a part. Sometimes, the victimised group is a minority who have been made a scapegoat for a nation’s ills (as with Jews and Gypsies in Nazi Germany, who were targeted because they were different).

When terrorist attacks are mounted, there are retaliatory attacks, often by armed forces. So the US felt justified in attacking Afghanistan because its innocent citizens had been killed by a terrorist plot which had been planned from Afghan territory. One can understand this. The perpetrators had been sheltered by the Taliban regime. But the problem with attacking terrorist or guerilla groups with military force is that they tend to blend back into the normal population, so when you attack them, there is a risk of killing and wounding innocent civilians, which further fuels the fires of righteous outrage.

I don’t know what the answer to all this is, I just know that we should be wary of those trying to whip up moral outrage, whatever side they are on. Take the Cronulla riots in Sydney. Those organising the rally whipped up moral outrage against young men of Middle Eastern background who had been harrassing beachgoers. Yes, it’s true, harrassing innocent people at the beach is a bad thing. As a result of the rally/riot, several people “of Middle Eastern appearance” were beaten and attacked. Bashing people who happen to look like they come from the Middle East is also a bad thing. Then young men in Lakemba whipped up moral outrage to fuel a retaliatory attack. Attacking the houses and cars of people in Maroubra is another bad thing. The thing is that it’s all bad, and it’s mostly innocent people on both sides who suffer.

Perhaps it’s just instinctive that the “ruthless” switch is tripped when we feel that our safety, territory or way of life is under threat. Perhaps we need to recognise that it’s all just part of the way we’re hardwired. Of course one is outraged by injustice suffered by one’s family, friends or compatriots. How much worse would it be if someone in your family or friendship group is killed by a particular group? I’m not sure how I would cope in those circumstances. As Nyholm said in the documentary, he had to acknowledge that he had doubt as to how he would behave. I don’t know either. I’ve never known how I would behave if I were in the Milgram experiment, although I hope that I’m ornery enough to disobey orders. I do hope that if my “ruthlessness” switch was tripped, I would be able to recover my reason and morality. As one of the interviewees said, the scary thing is not that man becomes a beast, but how long he remains a beast.

Perhaps we need to consider that old piece of Klingon wisdom: “Revenge is a dish best served cold”. (Seriously, its first recorded use in that form is in Star Trek II: The Wrath of Khan…the things you learn from Wikipedia!) When our moral outrage switch is tripped, perhaps we need to be aware that our “ruthlessness” switch may also be switched on at the same time, and guard against taking out our anger against anyone who is or may be associated with the group who is said to be morally outrageous. It is difficult to look into the heart of human darkness, but I am glad that I had the courage to watch this documentary.

When I was younger, I was very taken with the idea of a Charter of Rights for Australia. I simply couldn’t fathom the fact that Australia didn’t have certain rights in its Constitution. But now that I’m older, I’m not so sure that a Charter of Rights is the panacea for all ills in society. I know that human rights are malleable, and that one human right can conflict with another.

For a particularly thorny and controversial case, see The Queen v GJ [2005] NTCCA 20, a case involving an Aboriginal elder and a young Aboriginal girl aged 14 or 15. The girl had been “promised” to the elder when she was a baby, but did not want to marry him, but her grandmother sent her to his house. In the event, the elder was charged of offences including assault (with a boomerang) and sexual intercourse with a child under the age of 16. The trial judge sentenced the elder to one month imprisonment (with a suspended sentence) because he found that the elder was behaving in accordance with customary indigenous law. However, on appeal, this sentence was overturned.

Human rights do not provide a clear answer to a case like this. On the one hand, the elder could be said to have a right to continue to practice his own culture in a society where he made up an ethnic minority. On the other hand, the girl could be said to have a right to be free of inhuman and degrading treatment, and to have her rights treated as equal to any other child, regardless of her race or religion, and not to suffer because of her status as a woman.

I’m thinking about these issues because the Charter of Human Rights and Responsibilities Act 2006 (Vic) comes into force in Victoria today. Do I believe in human rights? Of course I do. I think that there should be a certain amount of freedom of speech (whether I agree with what is said or not), and that there should be freedom of religion, and so forth. But I can see that in some circumstances it is not easy. Say there is a group who argue that a certain religious group controls society and that they should be banned from Australia. This is something to which I have a very deep seated revulsion on a personal level. Obviously there is a right on the part of the group to freedom of speech, but there is also a right of the people of that particular religion to be free from vilification and discrimination. How to balance it? I can never quite make up my mind.

Peter Faris QC has written a piece which is extremely critical of the Charter of Rights. He sees it as a gravy train for lawyers, with little real practical benefit for the people.

I am not quite sure that the scenario is quite as dire as Faris QC portrays it. I went to a site for Conservative Lawyers in the UK (a scary concept). There I found a paper by two barristers which outlined the benefits and detriments of the Human Rights Act 1998 (UK) in the United Kingdom. (I had to overcome a personal prejudice – a lifelong dislike of Tories arising from my schooling in England). I found it to be a fair paper. The lawyers made five provisional conclusions:

There was more uncertainty in the outcome of litigation where public authorities were concerned, particularly concerning the liability of public authorities in tort.

More time and expense is incurred in arguing Human Rights Act points than is probably justifiable, although this is likely to settle down.

There has been some “refreshing” of the common law with arguable benefit in some areas although the common law was generally regarded as being sufficiently dynamic to bring about changes absent the Human Rights Act.

There is greater freedom for judges to make new law in areas where the law is either uncertain or possibly antiquated.

Some cases where claimants would have failed before the Human Rights Act can now succeed. What success means however is still somewhat uncertain. The actual remedies available under the HRA are still a matter for development.

At [50] of their paper, the barristers conclude:

The approach of the Courts to the Human Rights Act has not perhaps been as radical as some feared. But we do venture to suggest that the effect of the Human Rights Act has been considerable in terms of the way in which public authorities organise their affairs. Whilst much of the evidence is anecdotal and perceived, sometimes, through the possibly unreliable medium of the popular press, there nevertheless seems to us to be a significant body of evidence that in a number of areas public bodies fearful of human rights violations are being unnecessarily elaborate and defensive in their response. This is very much a mirror of what was covered by the all party parliamentary enquiry into the so-called Compensation Culture. There it was concluded that the perception of a compensation culture affected the way people behaved notwithstanding the fact that there was no real evidence of an increase in compensation claims.

I am not against human rights per se, but my fear is that incorporating human rights into legislation may actually mean that governmental bodies try to obfuscate their actions from a fear of potential legal action. I would not be as negative as Faris QC, and I can see some benefits in human rights legislation. However, I cannot help thinking of freedom of information legislation, which has led to governmental bodies trying to increase the amount of material which is “off-limits” and exceptional. The case of McKinnon last year (about which I wrote a post) is an example of the way in which FOI can be manipulated to hide information. Similiarly, I worry that the net effect will be an unsavory one: governmental institutions will attempt to circumlocute human rights rather than upholding them.